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1997 DIGILAW 51 (SC)

D. D. Choudhari v. H. I. Kalyani

1997-01-14

S.C.AGRAWAL, SUHAS C.SEN

body1997
ORDER 1. This appeal has been filed against the order dated 22-1-1982, passed by the Disciplinary Committee of the Bar Council of India whereby the appellant has been reprimanded for committing a misconduct in proceedings under Section 35 of the Advocates Act, 1961. The appellant is a practising advocate at Jalgaon. He is enrolled with the Maharashtra Bar Council. On 17-12-1974, the appellant was elected as a Councillor of the Jalgaon Municipal Council. As a Councillor he was elected as a member of the Senate of the Poona University for a period of six years from 30-1O-1975 to 29-10-1981. On 2-2-1977, the appellant was appointed as District Government Pleader and Public Prosecutor. In his letter dated 7-2-1977 to the President of the Municipal Council, Jalgaon the appellant stated that the office of Government Pleader and Public Prosecutor is not an office of profit and that he could continue as Councillor but if this contention was not acceptable then the letter may be treated as his letter of resignation from the Municipal Council. The said letter was treated as a letter of resignation and was accepted and the appellant ceased to be a Councillor of the Jalgaon Municipal Council. The seat from which the appellant was elected was declared vacant and a bye-election was notified in the month of May 1978. The appellant, however, continued to attend the meetings of the Senate even after he had ceased to be a Councillor and also received TA/DA from the Poona University for attending the said meetings up to 5-2-1979. Shri H. I. Kalyani, an advocate practising at Jalgaon (hereinafter referred to as the complainant") wrote a letter dated 7-2-1979 to the Vice-Chancellor of the Poona University bringing to his notice that the appellant had ceased to be a member of the Jalgaon Municipal Council and that appropriate action be taken against him for having cheated the University by receiving TA/DA for attending the meetings of the Senate. A copy of the said letter was also endorsed to the Bar Council of Maharashtra. The letter dated 7-2-1979 of the complainant was forwarded to the appellant by the Registrar of the Poona University for his comments and the appellant in his reply dated 22-2-1979 stated that the amended provision of the Poona University Act of 1974 had escaped his notice. The letter dated 7-2-1979 of the complainant was forwarded to the appellant by the Registrar of the Poona University for his comments and the appellant in his reply dated 22-2-1979 stated that the amended provision of the Poona University Act of 1974 had escaped his notice. The appellant returned the amount that was received by him by way of TA/DA from the University. The letter of the complainant dated 7-2-1979 was treated as a complaint and proceedings under Section 35 of the Advocates Act were initiated against the appellant by the Maharashtra Bar Council. 2. The appellant in his reply denied that he had committed any misconduct. He submitted that he bona fide believed that he continued to be a member of the Senate of the Poona University till the expiry of his term and since he was receiving the agenda and communications from the University to attend the meetings of the Senate he attended the meetings. He also stated that he has returned the amount that he had received by way of TA/DA from the University. 3. By order dated 4-4-1980 the Disciplinary Committee of the Maharashtra Bar Council dismissed the complaint on the view that no act of professional misconduct or other misconduct had been made out against the appellant. Feeling aggrieved by the said order passed by the Disciplinary Committee of the Maharashtra Bar Council the complainant filed an appeal before the Bar Council of India which was considered by the Disciplinary Committee of the Bar Council of India of which Shri K. G. Vakharia was the Chairman. In the election for the Bar Council of Gujarat held in December, 1981 Shri Vakharia was not elected as the member of the Gujarat Bar Council. The appeal filed by the appellant was allowed by the Disciplinary Committee of the Bar Council of India by order dated 22-1-1982 which bears the signatures of Shri Vakharia as Chairman. 4. In the impugned order the Disciplinary Committee of the Bar Council of India has agreed with the view of the Bar Council of Maharashtra that the appellant had not committed any act of professional misconduct. The Disciplinary Committee has, however, taken the view that the conduct of the appellant constitutes other misconduct under Section 35 of the Advocates Act and on that view the Committee has reprimanded the appellant. The Disciplinary Committee has, however, taken the view that the conduct of the appellant constitutes other misconduct under Section 35 of the Advocates Act and on that view the Committee has reprimanded the appellant. The Disciplinary Committee has proceeded on the basis that in 1974 a proviso had been inserted in Section 20(B) (xii) of the Poona University Act whereby it was provided that a person elected under sub-clauses (i) to (xii) of clause (B) shall cease to be a member of the Senate as soon as he ceases to be a member of the electing body or bodies as the case may be. The Disciplinary Committee did not accept the explanation of the appellant that he was not aware of the said provision and has observed that as a member of the legal profession with so much experience at the Bar the appellant could not plead ignorance of law The Disciplinary Committee has concluded that it was not a bona fide mistake on the part of the appellant and that it amounts to misconduct but taking the subsequent conduct of the appellant in repaying the amount to the University which was received by him as TA/DA the Disciplinary Committee has stated that it was taking a lenient view and that the ends of justice would be satisfied if the appellant is reprimanded. 5. The complainant had died during the pendency of the appeal before the Disciplinary Committee of the Bar Council of India, By order dated 10-3-1987, the Bar Council of Maharashtra and the Bar Council of India were allowed to be impleaded as respondents. In spite of service of notices no appearance has been made on behalf of both the bodies. 6. We have heard Shri Shetye, the learned Senior Counsel appearing for a the appellant, in support of the appeal. Shri Shetye has, in the first place, submitted that since Shri Vakharia, who was the Chairman of the Disciplinary Committee of the Bar Council of India, had ceased to be a member of the Bar Council of Gujarat in the elections held in December 1981, and thus he could not continue as Chairman of the Disciplinary Committee of the Bar Council of India after December 1981 and that he could not have put his signatures on the impugned order passed by the Disciplinary Committee on 22-1-1982 when he was no longer a member of the Disciplinary Committee. Since the full facts as regards the tenure of Shri Vakharia as a member of the Gujarat Bar Council and his right to continue as Chairman of the Disciplinary Committee of the Bar Council of India are not before us, we do not propose to go into this question. 7. Shri Shetye has next contended that the Disciplinary Committee of the Bar Council of India has erred in holding that the conduct of the appellant in attending the meetings of the Senate after he had ceased to be the member of the Jalgaon Municipal Council and in drawing TA/DA from the University for attending those meetings constitutes "other misconduct" punishable under Section 35 of the Advocates Act. In this connection Shri Shetye has submitted that the amendment that was made in the Poona University Act, 1974 had not come to the notice of the appellant when he attended the meetings of the Senate and that since the said amendment came to his notice, he stopped attending the meetings of the Senate and also refunded the amount that was received by way of TA/DA and, therefore, it cannot be said that in attending the meetings and receiving TA/DA the appellant had committed any misconduct for the purposes of Section 35 of the Advocates Act. We find considerable force in this submission of Shri Shetye. Having regard to the fact that as soon as it was brought to his notice that there was an amendment in the Poona University Act whereunder on his ceasing to be Councillor of the Jalgaon Municipal Council he ceased to be a member of the Senate of the Poona University, the appellant had returned the money that was received by way of TA/DA shows that the appellant had attended the meetings of the Senate and had received the amount of TA/DA from the University under a bona fide belief that he was continuing as a member of the Senate which belief was strengthened by the fact that the appellant was receiving the agenda and other communications from the University for g attending the meetings of the Senate. It cannot, therefore, be said that there was any dishonest intention on his part in having attended the meetings of the Senate and in having received the TA/DA for attending the meetings of the Senate. It cannot, therefore, be said that there was any dishonest intention on his part in having attended the meetings of the Senate and in having received the TA/DA for attending the meetings of the Senate. In these circumstances, we are unable to hold that the appellant was guilty of "other misconduct" for which action could be taken under Section 35 of the Advocates Act. The impugned order passed by the Disciplinary Committee of the Bar Council of India reprimanding the appellant for having committed a misconduct cannot, therefore, be sustained and has to be set aside. 8. The appeal is accordingly allowed and the order dated 22-1-1982 passed by the Disciplinary Committee of the Bar Council of India reprimanding the appellant is set aside. No order as to costs. 9. No orders are necessary on the CMPs at this stage.